Angela Jones v. John E. Jones, Jr.

2019 Ark. App. 596

• Court: Court of Appeals of Arkansas
• Decided: December 11, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 596 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry DIVISIONS II, III & IV Date: 2022.08.09 12:12:04 No. CV-18-1062 -05'00' Adobe Acrobat version: Opinion Delivered: December 11, 2019 2022.001.20169

ANGELA JONES APPEAL FROM THE MARION APPELLANT COUNTY CIRCUIT COURT [NO. 45DR-17-171] V.

JOHN E. JONES, JR. HONORABLE GORDON WEBB, APPELLEE JUDGE REVERSED

PHILLIP T. WHITEAKER, Judge

The Marion County Circuit Court entered a divorce decree dissolving the marriage

of the appellant, Angela Jones, and the appellee, John E. Jones, Jr.; settling their property

and debt issues; and awarding custody of their child, I.J., to John. Angela subsequently filed

a motion to set aside the child-custody portion of the decree, which the court denied. She

appeals the order denying her motion to set aside. For the following reasons, we reverse.

Angela and John were married in 2012. They have one child, I.J. On August 13,

2017, Angela alleged that John became drunk and aggressive; would not allow her to leave

with their daughter; and threatened to kill them. After this incident, Angela and John

separated, and Angela and the child moved to Alabama. After the separation, the parties began a series of litigation that included jurisdictions

in two states. 1 Shortly after moving to Alabama, Angela sought an order of protection against

John based on the specifics of the August 13 incident. She further alleged, generically, that

John had physically and sexually abused her in front of I.J. and that he had tried to physically

and psychologically control her, including threats of suicide. She averred that he was

irrational, thought the world was about to end, and wanted to “put [them] underground.”

The Alabama court granted an ex parte order of protection until November 15, 2017, when

it was set for a hearing.

While Angela was in Alabama seeking an order of protection, John was in Arkansas

seeking a divorce from bed and board. He filed his complaint on October 24, 2017. In it,

he pled his status as I.J.’s primary caregiver, alleging that he was the fit and proper person to

have full custody subject to Angela’s right to visitation. On November 14, Angela filed for

divorce from John in Alabama, alleging that she was the fit and proper person to have the

actual custody of I.J. On November 15, at the hearing on the order of protection in the

State of Alabama, both John and Angela were served with the competing divorce

complaints.

Although properly served, Angela did not answer John’s complaint for divorce

within thirty days. John proceeded with a hearing on his complaint for divorce, was granted

a divorce, and was awarded custody by default on January 31, 2018. The next day, Angela

1 The parties each claim a different primary state of residence during the marriage. Angela contends that their primary state of residence was Alabama; John contends that it was Arkansas.

2 filed a pro se motion to dismiss John’s complaint alleging that Arkansas did not have

jurisdiction because she and John had married and maintained their domicile residency in

Alabama. In response, John moved to strike Angela’s motion to dismiss, noting that it was

filed more than seventy-five days after the service of the complaint and noting that a divorce

had already been entered.

With the benefit of counsel, Angela subsequently filed a motion to set aside the

divorce decree under Rule 55 of the Arkansas Rules of Civil Procedure. 2 She first argued

that the decree should be set aside under Rule 55(c)(1) due to excusable neglect. She

admitted that she had been properly served; that when served, she promptly provided the

papers to her Alabama counsel; and that she believed the Arkansas case would be handled

because Alabama had primary jurisdiction over the matter. She maintained that this

constituted excusable neglect sufficient to set aside the award of custody under Rule

55(c)(1). She also argued that the decree should be set aside under Rule 55(c)(4) (other

reason justifying relief) because an award of custody involves a determination as to what is

in the best interest of the child, and to allow a parent to lose custody of a child by default

results in a serious miscarriage of justice. In support of her motion, Angela attached her

petition for the Alabama order of protection, which detailed her abuse allegations; her

2 Her motion also included arguments under Rule 60 of the Arkansas Rules of Civil Procedure. Her arguments on appeal do not address any Rule 60 arguments made below, and those arguments are, therefore, abandoned.

3 Alabama complaint for divorce; and an affidavit stating that both proceedings were

ongoing. 3

John responded, arguing that Angela was properly served yet failed to file a timely

answer. He further argued that Angela was bound by the actions of her attorney and had,

therefore, failed to show a mistake justifying the setting aside of the decree. John offered no

response to Angela’s Rule 55(c)(4) best-interest argument other than to argue that there are

no Arkansas cases discussing default judgments in cases in which the best interest of children

were involved.

The circuit court held a hearing on the motion to set aside default judgment in which

it took testimony from Angela, which focused primarily on her failure to timely file her

answer and whether her failure constituted excusable neglect. After hearing this testimony

and the arguments of counsel, the circuit court noted that while it was uncomfortable

determining custody of a child by default, there was no basis on which to set aside the

default judgment. Angela, in this one-brief appeal, contends that the circuit court abused its

discretion when it refused to set aside the default award of custody.

We begin our analysis by recognizing that pursuant to Rule 55(c) of the Arkansas

Rules of Civil Procedure, the circuit court may, upon motion, set aside a default judgment

previously entered for the following reasons:

3 At the hearing on the motion to set aside, John’s counsel indicated that the “proceedings” in Alabama had been “denied and dismissed.” There is no evidence of this in our record. Even if true, there is also no evidence in our record to indicate on what basis (whether substantive or procedural) the Alabama court made its decision, or whether the validity of her claims had been determined.

4 (1) mistake, inadvertence, surprise, or excusable neglect;

(2) the judgment is void;

(3) fraud, misrepresentation, or other misconduct of an adverse party; or

(4) any other reason justifying relief from the operation of the judgment.

Ark. R. Civ. P. 55(c). In appeals concerning issues under sections (c)(1), (3), or (4) of Rule

55, we review the circuit court’s granting or denial of a motion to set aside a default

judgment for abuse of discretion. Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720

(2004).

On appeal, Angela argues that default judgments are not appropriate when child

custody is at issue and that the best interest of the child can serve as a basis for relief from a

default judgment under Rule 55(c)(4). She asserts that this court should recognize a blanket

exception to the default-judgment rule in child-custody cases. Angela admits that there is

no Arkansas case specifically addressing the relationship between default judgments and a

determination of the best-interest-of-the-child standard in child-custody cases. Instead, she

cites cases from Florida and Maryland, which hold that default judgments are either not

available in child-custody cases or that a full evidentiary hearing should be held to determine

best interest in such cases. She argues that child-custody decisions require consideration of

the best interest of the child and that a best-interest-of-the-child analysis necessarily requires

the court to hear all evidence pertaining thereto; thus, a child-custody determination should

not be entered by default. She urges us to adopt either the Florida or the Maryland approach.

We decline to adopt a blanket exception to the default-judgment rule in child-

custody cases. We, however, agree with Angela that the circuit court abused its discretion

5 by denying her request to set aside the custody award pursuant to Rule 55(c)(4) because the

need to consider the best interest of the child in this child custody case constituted an “other

reason justifying relief.” Ark. R. Civ. P. 55(c)(4).

Generally, we do not favor default judgments and promote their avoidance whenever

possible. B & F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). In 1990, the

supreme court amended Rule 55 by making it more lenient and allowing more discretion

to circuit courts in deciding whether to enter a default judgment, reflecting a preference for

deciding cases on the merits rather than on technicalities. Moore v. Taylor Sales, Inc., 59 Ark.

App. 30, 953 S.W.2d 889 (1997).

Here, Angela argued the decree should be set aside for “other reason justifying relief.”

Her “other reason justifying relief” generically was the best interest of the child. In child-

custody cases, the best interest of the children are of paramount importance. Rogue v.

Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981). We have long held that the primary

consideration in child-custody cases is the welfare and best interest of the child and that all

other considerations are secondary. Grimsley v. Drewyor, 2019 Ark. App. 218, 575 S.W.3d

636. Here, however, the circuit court’s primary focus was on Angela’s failure to file a timely

response. Thus, Angela’s technical failure became the primary consideration, and the best

interest of I.J. became secondary—a complete perversion of the premise that our courts are

concerned with the best interest of the child.

More specifically, Angela argued the decree should be set aside for “other reason

justifying relief,” and one of the reasons justifying relief was an allegation of domestic abuse.

Our statutes mandate that the court must consider the effect of the abuse on the best interest

6 of the child when child custody is at issue. Ark. Code Ann. § 9-13-101(c)(1) (Repl. 2015).

Our statute even creates a rebuttable presumption that it is not in the best interest of a child

to be placed in the custody of an abusive parent if there is a pattern of domestic abuse. Ark.

Code Ann. § 9-13-101(c)(2). We find nothing in our record to indicate that the circuit

court considered Angela’s abuse allegations when evaluating her motion to set aside the

default judgment. We are not suggesting that the court was required to determine the

truthfulness of the domestic-abuse claims at the hearing on the motion to set aside. Rather,

the court was simply required to consider whether the allegations constituted “other reasons

justifying relief.” Here, the court failed to do so, which was error.

For the foregoing reasons, we hold that the default judgment on the issue of custody

should have been set aside pursuant to Rule 55(c)(4)—other reasons justifying relief. We

reverse the award of custody to John and remand to the circuit court for a hearing to

determine custody based on the best interest of the child.

Reversed.

GRUBER, C.J., and HARRISON, SWITZER, VAUGHT, and MURPHY, JJ., agree.

ABRAMSON, VIRDEN, and GLADWIN, JJ., dissent.

RAYMOND R. ABRAMSON, Judge, dissenting.

What has once been settled by precedent will not be unsettled overnight, for certainty and uniformity are gains not lightly to be sacrificed.[1]

1 Benjamin N. Cardozo, The Paradoxes of Legal Science, 29–30 (1928).

7 I believe that the circuit court properly exercised its discretion when it declined to

set aside the default judgment in this case, and I therefore dissent.

This is a case of first impression of the collision that occurs at the intersection of

default-judgment law and the doctrine of best interest of children in custody cases. I applaud

the noble goal of the majority in its quest to elevate the doctrine of best interest of the child

over our well-established jurisprudence regarding the setting aside of a default judgment.

But the factual background of this case does not warrant such a sea change. In any event, it

is not the intermediate appellate court’s role to create a new exception to the law of default

judgments, particularly on the record and arguments now before us. Such a policy decision

clearly should be a legislative prerogative.

This case came to us as a routine appeal of whether a default judgment should be set

aside. It leaves us making wholesale changes in the way our courts will address default

judgments in the future. The majority has carved out an exception in our law of default

judgments not sanctioned by our supreme court or our legislature, ruling in a way that many

would like the law to be rather than what the law actually is.

The majority holds that the circuit court abused its discretion by denying Angela’s

request to set aside the custody award pursuant to Arkansas Rule of Civil Procedure Rule

55(c)(4) because the need to consider the best interest of the child in this case constituted

an “other reason justifying relief.” The majority says that the “other reason justifying relief”

was that John committed domestic abuse.

Today’s decision defies logic. The claims of domestic abuse are wholly

unsubstantiated. Although there had been a case pending in Alabama regarding an order of

8 protection, that case was dismissed. In fact, there were no findings at all as to whether John

committed domestic abuse against Angela. In a footnote, the majority questions whether

the protection proceedings in Alabama had been “denied and dismissed.” The evidence of

such was the statement of John’s counsel, an officer of the court, which was not rebutted

by Angela’s counsel or questioned by the court. In any event, the Alabama ex parte order

expired by its own terms on November 15, 2017, and Angela has sought no protection in

our state courts. Moreover, the matters surrounding Angela’s claims, as set forth in her

Alabama petition for protection and later dismissed, were not even broached at the Arkansas

hearing on the motion to set aside. For the majority to bootstrap these allegations into

findings to support reversal is inexplicable. Angela’s motion to set aside the default judgment

contains mere allegations that defenses existed. She has offered no proof to support those

allegations, and the naked allegation that a party has a meritorious defense does not warrant

setting aside a default judgment. See Adams v. Moody, 2009 Ark. App. 474, 324 S.W.3d 348.

The fact that Angela’s Alabama protection case was dismissed and no findings were

made eviscerates the majority’s use of Arkansas Code Annotated section 9-13-101(c)(1) and

(2) (Repl. 2015) to support reversal. The majority further omits to mention that at the

circuit court hearing on Angela’s motion to set aside the default judgment, with both parties

present and represented by counsel, there was no testimony whatsoever concerning

domestic abuse. The abstract reflects that Angela’s position was almost entirely focused on

the excusable- neglect issue. Angela testified solely about the excusable-neglect issue and

spoke not one word about domestic abuse, either on direct examination or on cross-

examination. Nor did Angela call John as a witness to ask about abuse. Only after Angela

9 rested and the court heard arguments of counsel was the best-interest issue raised. Yet the

majority hinges its decision on allegations of domestic abuse.

The majority seems to fault the circuit court that its primary focus was on the

circumstances surrounding the default judgment but does not recognize that Angela’s

counsel made that issue the primary focus of his case. The best-interest argument was a mere

afterthought.

There are no Arkansas cases that address Rule 55(c)(4) along with the best interest of

the child. There is no Arkansas statute or controlling precedent that requires our courts to

consider the best interest of the child or to analyze all evidence pertaining to the best interest

in a child custody in a child custody default judgment context. Angela candidly concedes

this point. Instead, she argues that this court should correct the great “paradox” that exists

between default judgments and the best interest of the child by following decisions from

courts in Florida and Maryland. Angela cites no convincing authority in support of her

argument, and this court should decline to address it for that reason alone. See Stilly v. Ft.

Smith Sch. Dist., 367 Ark. 193, 238 S.W.3d 902 (2006). It is an appellant’s burden to

demonstrate and explain reversible error.

The majority by its decision today is sacrificing the stability of our long-settled

default-judgment law to quixotically address what Angela perceives is a paradox. Cardozo

cautioned us against such ventures long ago.

Despite the majority’s belief that this decision will have little precedential effect, I

believe that it will create an unholy minefield for practitioners. As a result of this decision,

the time-tested standard language contained in Arkansas divorce complaints involving

10 custody will need to be entirely overhauled, and lawyers will be required to add factual

allegations designed to prove that the respondent spouse is an unfit parent. Bifurcated

hearings will become necessary in default cases.

Further, it is of paramount importance to recognize that the standard of review in

this case is abuse of discretion. The abuse-of-discretion standard is “a high threshold that

does not simply require error in the court’s decision but requires that the circuit court act

improvidently, thoughtlessly, or without due consideration.” Gulley v. State, 2012 Ark. 368,

at 10, 423 S.W.3d 569, 576. Here, it can fairly be said that the trial court did indeed consider

the abuse allegations––the petition for protection and its ex parte order were part of the

very short record before the court. The court specifically did consider Angela’s Rule 55(c)(4)

argument:

[T]he Court could find no case that . . . any other reason justifying relief from the operation of the judgment. I respect Mr. Pasthing’s argument, but . . . I just simply don’t find, based on the testimony, that there is a basis to set aside this default judgment. I have that uncomfortableness that you know, that the idea of determining custody of a child by default, I think like any other Judge would, but in the circumstances of this case, the Court is going to . . . deny and dismiss the motion.

The majority states that they find nothing in the record to indicate that the circuit

court considered Angela’s abuse allegations, but the court clearly took it under consideration

to the extent it was presented. As noted above, the court said it “respect[ed] [Angela’s

counsel’s] argument,” but it did not find, based on the testimony, that there was a basis to

set aside the default judgment in this case. As such, I cannot say that the circuit court acted

improvidently, thoughtlessly, or without due consideration when, after a full hearing, it

declined to grant the motion to set aside the default judgment. The court followed well-

settled law on setting aside default judgments, and its decision should be affirmed.

11 Accordingly, given our precedent and the standard of review, I would affirm the

circuit court’s order denying Angela’s motion to set aside the default judgment.

VIRDEN and GLADWIN, JJ., join.

Lancaster & Lancaster Law Firm, PLLC, by: Clinton W. Lancaster, for appellant.

One brief only.